Shawn M. Philbert

The appellant appealed a motion judge's order waiving his participation in his child's passport application and his consent to her travel.

He argued the motion judge lacked jurisdiction because the parties had a parenting coordinator with arbitral authority over these issues.

The Court of Appeal dismissed the appeal, finding that the motion judge appropriately exercised his authority under rule 32.1(2) of the Family Law Rules to enforce a prior award made by the parenting coordinator requiring the appellant to take steps to obtain the passport.

In a high-conflict family law enforcement motion under Rule 1(8) of the Family Law Rules, the father sought to enforce an arbitration award requiring the mother to ensure the 17 and 15-year-old children attend reunification therapy.

On its own initiative, the court raised the issue of whether it had jurisdiction to order a Voice of the Child report.

The court held that it had jurisdiction under the Family Law Rules, its inherent jurisdiction to control its process, and its parens patriae jurisdiction.

Given the children's ages and the potential impact of the enforcement order on them, the court ordered a privately funded Voice of the Child report before proceeding with the enforcement motion.

The moving party solicitor brought a motion to oppose the confirmation of an Assessment Officer's report that reduced his legal accounts by 45% and ordered a refund to the client.

The solicitor argued that missing transcript excerpts from his examination in chief necessitated a rehearing and that the reduction was arbitrary.

The Superior Court of Justice dismissed the motion, finding no evidence of real and serious risk of prejudice from the missing transcripts and no palpable and overriding error in the Assessment Officer's application of the Cohen factors to determine the reasonableness of the accounts.

The self-represented applicant sought judicial review in the Divisional Court to remove a parenting coordinator/arbitrator appointed under a consent order.

The respondent challenged the court's jurisdiction.

The Divisional Court dismissed the application, finding that under the Arbitration Act, an application to remove an arbitrator must be brought in the Superior Court of Justice or Family Court, not the Divisional Court.

The court also noted it would decline to exercise its discretion even if it had jurisdiction, as the proper route is under the Family Law Rules and the Arbitration Act.

This decision addresses outstanding issues following a contentious family law trial, specifically concerning child support calculation, parenting orders, and costs.

The court dismissed the applicant's attempt to re-litigate the child support offset calculation and section 7 expenses, finding no arithmetical errors and no new evidence.

It clarified parenting orders, incorporating some of the parties' agreed-upon terms and making mutual orders for activity attendance.

On costs, the court found the applicant was more successful on the critical issues of material change and sole decision-making authority, despite her offer to settle not meeting the Rule 18 criteria for substantial indemnity.

Considering the divided success and the unreasonable conduct of both parties, the court awarded the applicant partial indemnity costs of $40,000.00, inclusive of HST and disbursements, payable within twelve months.

The Appellant (L) appealed a family law decision that found her guilty of parental alienation and implemented a custody reversal.

L raised several grounds of appeal, including the trial judge's refusal to conduct a judicial interview of the child, refusal to re-open the trial for fresh evidence regarding sexual abuse allegations (which were later disproven), alleged judicial bias, and an incomprehensible order.

The court dismissed the appeal, upholding the trial judge's discretionary decisions, finding no error in the fresh evidence application denial (due to lack of credibility and due diligence), no apprehension of bias, and that the reasons for the custody reversal were adequately provided and the order was functional.

The respondent father brought a motion to change seeking expanded parenting time and a reduction in child support.

The applicant mother brought a cross-motion seeking sole decision-making authority and reduced parenting time for the father.

The court found a material change in circumstances due to the father's inability to prioritize the child's best interests, particularly regarding medical issues and extracurricular activities, and the significant deterioration in the parties' ability to co-parent.

The court awarded sole decision-making authority to the mother and reduced the father's parenting time.

The court also imputed the father's income at $100,000 for child support purposes, finding him intentionally underemployed, and ordered proportional sharing of section 7 expenses for summer camps, while excluding gymnastics and language school going forward.

This is a family law case involving former spouses, Dr. K (applicant) and Ms. H (respondent), and their two daughters.

This was the second trial, following a previous decision that set aside their separation agreement and established the separation date.

The court determined child support, spousal support, equalization payment, and the disposition of the matrimonial home.

The court imputed income to both parties for support purposes, granted Ms. H's claim for a resulting trust over the matrimonial home, and dismissed Dr. K's claim for occupation rent.

The court also addressed the issue of security for support payments given Dr. K's relocation to New Zealand and conflicting information regarding his income and tax residency.

Further steps were ordered for a final determination on the vesting order and tax deductibility of spousal support.

The moving party sought leave to appeal a decision of the Superior Court.

On consent, the Divisional Court granted leave to appeal, set aside the lower court's decision, and remitted the matter back to the Superior Court in Milton for the scheduling of a case conference.

No costs were ordered.

The applicant father brought a motion to change a final parenting order, seeking a temporary reversal of primary residence and a 120-day no-contact period between the child and the respondent mother due to severe parental alienation.

The mother had repeatedly thwarted the father's parenting time, made unsubstantiated allegations of physical and sexual abuse, and sabotaged reunification therapy.

The court found that the mother's alienating behaviour constituted family violence and placed the child at risk of emotional harm.

Applying the stringent test for temporary variation of a final order, the court granted the father's motion, reversing primary residence to the father and ordering a 120-day blackout period for the mother to allow the father and child to participate in a reunification program.

The moving party (respondent in the main application) brought a motion to strike the responding party's family law application due to his failure to pay two outstanding costs orders.

The responding party admitted non-compliance but sought an adjournment of the trial to allow him time to pay.

The court declined to strike the application, noting that parenting issues required both parties' participation.

However, the court found it would be unjust to allow the responding party to force the moving party to incur costs for a responding expert report while he remained in breach of court orders.

The court ordered that the responding party could not rely on an expert witness report for his spousal support defence unless he paid the outstanding costs orders.

This judgment addresses issues of section 7 expenses and section 9 child support in a shared parenting arrangement.

The court determined the parties' incomes, excluding the father's non-taxable benefits and the mother's RRSP withdrawals (which were used for legal fees).

It found the father's blanket refusal to consent to additional section 7 expenses unreasonable, ordering him to contribute to therapy and competitive dance, but not Montessori tuition or private swimming lessons.

For ongoing child support, despite a set-off calculation, the court ordered the father to pay an additional amount to the mother, considering the higher housing costs incurred by the mother and the father's greater ability to absorb costs.

This costs endorsement followed a trial of an issue where the Separation Agreement was set aside (Applicant's primary claim) and the date of separation was determined (Respondent's alternative position).

The Applicant, M.H., sought full costs recovery, while the Respondent, O.K., argued for no costs due to divided success and M.H.'s unreasonable conduct.

The court found M.H. to be the significantly more successful party on the dominant issue of setting aside the agreement, especially given her Rule 18(14) Offer to Settle and O.K.'s complete failure to make any offer.

Despite some unreasonable conduct by M.H. (financial disclosure, inadmissible evidence) leading to a modest reduction, and O.K.'s success on the ancillary separation date issue, M.H. was awarded substantial costs.

The court drew an adverse inference against O.K. for failing to provide his own Bill of Costs.

The trial determined whether a 2015 Separation Agreement should be set aside as a sham under section 56(4) of the Family Law Act, and if so, the parties' separation date.

The court found the Agreement to be a sham because the parties were not separated, did not intend to separate, and did not intend to be bound by its terms when it was signed, using it primarily for tax advantage.

Consequently, the Agreement was set aside.

The court determined the actual date of separation to be December 18, 2019, when the husband physically left the matrimonial home and formed the intention to separate, rejecting the earlier date claimed in the Agreement and the later dates proposed by the wife.

Following two summary judgment motions in a family law proceeding, the respondent sought approximately $115,000 in costs based on offers to settle.

The applicant argued the amount was grossly excessive and disproportionate.

The court applied the principles of proportionality, fairness, and reasonableness, significantly reducing the claimed hours and disallowing time docketed by an unidentified law clerk.

The respondent was awarded a total of $30,000 in costs inclusive of disbursements and HST.

The father brought a motion seeking a 2/2/3 interim parenting schedule, while the mother brought a cross-motion for child support, sale of the matrimonial home, and sole decision-making.

The court dismissed the mother's motion as the issues had not been conferenced and lacked urgency.

The court denied the father's request for a 2/2/3 schedule, finding that his unpredictable work schedule and reliance on extended family did not support it.

The court ordered a parenting schedule that maintained the pre-separation status quo, with the children residing primarily with the mother and the father having alternate weekends and Wednesday evenings.

The moving party brought a motion for summary judgment to uphold the validity of a marriage contract.

The responding party sought to set aside the contract under section 56(4) of the Family Law Act, alleging non-disclosure of the value of a property, failure to understand the contract, and duress.

The court found that the responding party had independent legal advice, knew of the property's existence, and failed to establish any grounds for setting aside the agreement.

The motion for summary judgment was granted, and the marriage contract was declared valid and enforceable.

The applicant mother brought a motion for temporary ongoing child support, retroactive child support arrears, and financial disclosure.

The court ordered temporary child support based on the respondent father's actual income of $39,600, declining to impute a higher income.

The issue of retroactive child support was adjourned to trial due to the complex financial history, including the applicant's unilateral refinancing of the matrimonial home.

The court ordered a process for resolving the remaining disclosure issues and awarded the applicant $7,000 in costs based on divided success.

The respondent husband brought a motion to set aside a final order made after an uncontested trial, arguing that the equalization and spousal support calculations were based on mistakes and misrepresentations, and that his non-compliance was due to mental health issues.

The applicant wife brought a cross-motion to dismiss the husband's motion and to correct a $20,000 calculation error in the equalization payment.

The court applied the Mountainview Farms test and found the husband failed to provide a plausible explanation for his default or an arguable defence on the merits.

The husband's motion was dismissed, the order was amended to reflect the $20,000 credit, and costs were awarded to the wife.

The applicant father brought a motion for access in a longstanding family law dispute involving allegations of parental alienation.

The court found that the respondent mother had been wrongfully withholding access and obstructing the reunification process with the court-appointed therapist.

The court ordered both parties to continue attending co-parenting sessions, follow the therapist's recommendations, and directed that no further motions be brought without leave.

The respondent was ordered to pay $7,500 in costs due to her refusal to work toward reunification.